1. The author of the
communication is Errol Johnson, a Jamaican citizen who, at the time of
submission of his communication, was awaiting execution at St. Catherine
District Prison, Jamaica. He claims to be a victim of violations by Jamaica
of articles 6, 7, 10, paragraph 1, and 14, paragraphs 1, 3 (c), (g) and 5,
of the International Covenant on Civil and Political Rights. The author is
represented by counsel. In early 1995, the offence of which the author was
convicted was classified as non-capital murder, and his death sentence was
commuted to life imprisonment on 16 March 1995.

THE FACTS AS PRESENTED BY THE
AUTHOR

2.1 The author was,
together with a co-defendant, Irvine Reynolds, convicted of the murder of
one Reginald Campbell and sentenced to death on 15 December 1983 in the
Clarendon Circuit Court. His application for leave to appeal was dismissed
by the Court of Appeal on 29 February 1988; a reasoned appeal judgement was
issued on 14 March 1988. On 9 July 1992, at separate hearings, the Judicial
Committee of the Privy Council dismissed the petitions for special leave to
appeal of the author and of Mr. Reynolds.

2.2 Reginald Campbell, a
shopkeeper, was found dead in his shop at around 9.00 a.m. on 31 October
1982. The post-mortem evidence showed that he died from stab wounds to the
neck. A witness for the prosecution testified that, earlier in the morning
at approximately 6.00 a.m., he had seen Mr. Campbell in his garden, as well
as two men who were waiting in the vicinity of the shop. At an
identification parade held on 11 November 1982, this witness identified Mr.
Reynolds but not the author as one of the men who had been waiting near the
shop. Another prosecution witness testified that about one hour later on the
same morning, he met Irvine Reynolds, whom he knew, and the author, whom he
identified at an identification parade, coming from the direction of
Campbell's shop. He walked with them for about two miles, observing that
Reynolds played with a knife, that both men were carrying travel bags, and
that both were behaving in a suspicious way. Thus, when a mini-bus was
approaching them from the opposite direction, Reynolds scurried up the road
embankment, as if trying to hide.

2.3 The prosecution
further relied on evidence discovered by the police during a search of the
rooms in which the author and Mr. Reynolds were living, in particular four
cheques signed by Mr. Campbell, as well as items (running shoes, detergent,
etc.) similar to those stolen from the shop. Furthermore, a caution
statement allegedly made by Mr. Johnson to the police on 12 November 1982
was admitted into evidence after the voir dire; in it, the author declared
that Reynolds had walked into the store to buy cigarettes, while he was
waiting outside. He then heard a noise, went into the shop and saw Mr.
Campbell bleeding on the ground, with Reynolds carrying a knife standing
aside.

2.4 During the trial, the
author and Reynolds presented an alibi defence. During the voir dire, the
author denied under oath that he had dictated the above-mentioned statement
to the police and claimed that he had been forced to sign a prepared
statement. He further testified that, after he had told the investigating
officer that he refused to sign the statement until his legal representative
had seen it, he was taken to the guards' room. There, an investigating
officer, Inspector B., hit him four times on his knees with a baton; when he
bent over, he was kicked in the stomach and hit on his head. He stated that
blood was trickling down his ear when he signed the statement. This evidence
was corroborated by Reynolds who, in an unsworn statement from the dock,
noted that he had seen the author with blood running down the side of his
head when walking past the guards' room. The investigating officers were
cross-examined on the issue of ill-treatment by the defence during the voir
dire, as well as in the presence of the jury.

2.5 At the close of the
prosecution's case, the author's lawyer, a Queen's Counsel, argued that
there was no case to answer, as the evidence went no further than showing
that Errol Johnson had been present in the vicinity of the shop at the time
of the murder. The judge rejected the no-case submission.

2.6 On appeal, the
author's lawyer argued that the judge had failed to adequately direct the
jury on the caution statement, so that the possibility of reaching a verdict
of manslaughter was not left for its consideration. In counsel's opinion,
the caution statement showed that, while the author was present at the
scene, he was not a party to the crime. The Court of Appeal dismissed the
argument, stating that "[t]he value of the statement was to rebut his alibi
and to put him on the scene of the crime".

2.7 The main grounds on
which the author's further petition for special leave to appeal to the
Judicial Committee of the Privy Council was based were that:

- the trial judge erred in law
in rejecting the "no case to answer" submission, where evidence produced by
the prosecution was not capable of proving either that the author had
himself committed the murder, or that he had participated in a joint
enterprise which would have made him guilty of murder or manslaughter; and

- the direction of the judge on
the nature of joint enterprise was confused, and that he failed to direct
the jury properly as to which findings of fact arising in the case could
give rise to a verdict of manslaughter.

2.8 Counsel notes that the
author did not apply to the Supreme (Constitutional) Court of Jamaica for
constitutional redress, as a constitutional motion would fail in the light
of the precedents in the case law of the Judicial Committee, notably in the
cases of D.P.P. v. Nasralla 2 All E.R. 161 (1967) and Riley et al. v.
Attorney-General of Jamaica, 2 All E.R. 469 (1982) where it held that the
Constitution of Jamaica intended to prevent the enactment of unjust laws and
not merely, as claimed by the applicants, unfair treatment under the law.
Furthermore, even if it were considered that a constitutional remedy were
available to the author in theory, it would be unavailable to him in
practice since he lacks the resources to secure private legal
representation, and no legal aid is made available for the purpose of
constitutional motions. Reference is made in this context to the established
jurisprudence of the Committee.

THE COMPLAINT

3.1 It is argued that the
author was detained on death row for over 10 years, and that if he were to
be executed after such a delay, this would amount to cruel and degrading
treatment and/or punishment, in violation of article 7 of the Covenant. In
substantiation of his claim, counsel refers to the findings of the Judicial
Committee of the Privy Council in Pratt and Morgan v. Attorney-General of
Jamaica and of the Supreme Court of Zimbabwe in a recent case. The fact that
the author was held on death row for so long under the appalling conditions
of detention at St. Catherine District Prison is said to amount in itself to
a violation of article 7.

3.2 Counsel contends that
the beatings to which his client was subjected during police interrogation
amount to a violation of articles 7 and 10, paragraph 1, of the Covenant. He
recalls that the author did inform his lawyer about the beatings, that the
lawyer raised the issue during the trial, that the author himself repeated
his claim in a sworn and an unsworn statement during the trial, and that his
co-defendant corroborated his version. By reference to the Committee's
jurisprudence [FN1] counsel argues that the physical and psychological
pressure exercised by the investigating officers on the author, with a view
to obtaining a confession of guilt, violates article 14, paragraph 3 (g), of
the Covenant.

3.3 Counsel further
alleges that the delay of 51 months between the author's trial and the
dismissal of his appeal constituted a violation of article 14, paragraphs 3
(c) and 5, of the Covenant, and refers to the Committee's jurisprudence on
this issue. E.g. Views on case No. 230/1987 (Henry v. Jamaica), adopted 1
November 1991, para. 8.4; case No. 282/1988 (Leaford Smith v. Jamaica),
Views adopted 31 March 1993, para. 10.5; and case No. 203/1986 (Muñoz
Hermosa v. Peru), Views adopted 4 November 1988, para. 11.3. He forwards a
copy of a letter from the author's lawyer in Jamaica, who indicates that
there was a long delay in the preparation of the trial transcript. It
further transpires from correspondence between the author and the Jamaica
Council for Human Rights that the Council was informed on 26 June 1986 that
the author's appeal was still pending. On 10 June 1987, the Council asked
the Registrar of the Court of Appeal to forward the Notes of Evidence in the
case. This request was reiterated in November and in December 1987. On 23
February 1988, the Council informed the author that it was unable to assist
him, as it had still not received the trial transcript. The delays
encountered in making available to the author the trial transcript and a
reasoned summing up of the judge are said to have effectively denied him his
right to have conviction and sentence reviewed by a higher tribunal
according to law.

3.4 It is further
submitted that the trial judge's failure to direct the jury adequately as to
which findings of facts arising in the case might have allowed a verdict of
manslaughter, amounted to a violation of article 14, paragraph 1, of the
Covenant.

3.5 Finally, counsel
argues that the imposition of a capital sentence upon completion of a trial
in which the provisions of the Covenant were violated amounts to a violation
of article 6, paragraph 2, of the Covenant, if no further appeal against the
sentence is available.

THE STATE PARTY'S INFORMATION
AND OBSERVATIONS AND COUNSEL'S COMMENTS THEREON

4.1 In its observations of
13 February 1995, the State party does not formulate objections to the
admissibility of the case and offers, "in the interest of expedition and in
the spirit of cooperation", comments on the merits of the communication.

4.2 With regard to the
claim that the length of time spent on death row constitutes a violation of
article 7, the State party contends that the judgement of the Judicial
Committee of the Privy Council of 2 November 1993 in Pratt and Morgan v.
Attorney-General of Jamaica is not necessarily dispositive of all other
cases where a prisoner has been held on death row for over five years.
Rather, each case must be considered on its merits. In support of its
argument, the State party refers to the Committee's Views in the case of
Pratt and Morgan, where it was held that delays in the judicial proceedings
did not per se constitute cruel, inhuman and degrading treatment within the
meaning of article 7.

4.3 The State party notes
that it is investigating the author's allegations of ill-treatment during
interrogation and promises to transmit its findings "as soon as the
investigations are complete". As of 16 October 1995, the results of said
investigations had not been forwarded to the Committee.

4.4 As to the delay of 51
months between the author's trial and the dismissal of his appeal, the State
party equally states that it is investigating the reasons for the delay. As
of 16 October 1995, it had not forwarded to the Committee the result of said
investigations.

4.5 The State party denies
a violation of article 14, paragraph 1, on account of the inadequacy of the
judge's instructions to the jury, and contends that this allegation relates
to questions of facts and evidence in the case the examination of which,
under the Committee's own jurisprudence, is not generally within its
competence. It further denies a violation of article 6, paragraph 2, without
giving reasons.

5.1 In his comments on the
State party's submission, counsel agrees to the joint examination of the
admissibility and the merits of the case. He reaffirms that his client is a
victim of a violation of articles 7 and 10 (1), because of the length of
time he remained confined to death row. He claims that the judgement of the
Judicial Committee of the Privy Council of 2 November 1993 in Pratt and
Morgan does constitute a relevant judicial precedent.

5.2 In the latter context,
counsel submits that any execution that would take place more than five
years after conviction would undoubtedly raise the "strong grounds" adduced
by the Judicial Committee for believing that the delay would amount to
inhuman and degrading treatment and punishment. He argues that on the basis
of the Guidelines developed by the Judicial Committee, after a period of 3
to 5 years from conviction, an assessment of the circumstances of each case,
with reference to the length of delay, the prison conditions and the age and
mental state of the applicant, could amount to inhuman and degrading
treatment. He further contends that incarceration on death row for over five
years would per se constitute cruel and degrading treatment.

ADMISSIBILITY CONSIDERATIONS AND
EXAMINATION OF MERITS

6.1 Before considering any
claims contained in a communication, the Human Rights Committee must, in
accordance with rule 87 of its rules of procedure, decide whether or not it
is admissible under the Optional Protocol to the Covenant.

6.2 The Committee has
ascertained, as required under article 5, paragraph 2 (a), of the Optional
Protocol, that the same matter is not being examined under another procedure
of international investigation or settlement.

6.3 The Committee observes
that with the dismissal of the author's petition for special leave to appeal
by the Judicial Committee of the Privy Council in July 1992, the author has
exhausted domestic remedies for purposes of the Optional Protocol. The
Committee notes that the State party has not raised objections to the
admissibility of the complaint and has forwarded comments on the merits so
as to expedite the procedure. The Committee recalls that article 4,
paragraph 2, of the Optional Protocol stipulates that the receiving State
shall submit its written observations on the merits of a communication
within six months of the transmittal of the communication to it for comments
on the merits. The Committee reiterates that this period may be shortened,
in the interest of justice, if the State party so wishes. FN2 The Committee
further notes that counsel for the author has agreed to the examination of
the case on the merits at this stage.

7. The Committee,
accordingly, decides that the case is admissible and proceeds, without
further delay, to an examination of the substance of the author's claims, in
the light of all the information made available to it by the parties, as
required by article 5, paragraph 1, of the Optional Protocol.

8.1 The Committee first
has to determine whether the length of the author's detention on death row
since December 1983, i.e. over 11 years, amounts to a violation of articles
7 and 10, paragraph 1, of the Covenant. Counsel has alleged a violation of
these articles merely by reference to the length of time Mr. Johnson has
spent confined to the death row section of St. Catherine District Prison.
While a period of detention on death row of well over 11 years is certainly
a matter of serious concern, it remains the jurisprudence of this Committee
that detention for a specific period of time does not amount to a violation
of articles 7 and 10 (1) of the Covenant in the absence of some further
compelling circumstances. The Committee is aware that its jurisprudence has
given rise to controversy and wishes to set out its position in detail.

8.2 The question that must
be addressed is whether the mere length of the period a condemned person
spends confined to death row may constitute a violation by a State party of
its obligations under articles 7 and 10 not to subject persons to cruel,
inhuman and degrading treatment or punishment and to treat them with
humanity. In addressing this question, the following factors must be
considered:

(a) The Covenant does not
prohibit the death penalty, though it subjects its use to severe
restrictions. As detention on death row is a necessary consequence of
imposing the death penalty, no matter how cruel, degrading and inhuman it
may appear to be, it cannot, of itself, be regarded as a violation of
articles 7 and 10 of the Covenant.

(b) While the Covenant
does not prohibit the death penalty, the Committee has taken the view, which
has been reflected in the Second Optional Protocol to the Covenant, that
article 6 "refers generally to abolition in terms which strongly suggest
that abolition is desirable". [FN3] Reducing recourse to the death penalty
may therefore be seen as one of the objects and purposes of the Covenant.

(c) The provisions of the
Covenant must be interpreted in the light of the Covenant's objects and
purposes (article 31 of the Vienna Convention on the Law of Treaties). As
one of these objects and purposes is to promote reduction in the use of the
death penalty, an interpretation of a provision in the Covenant that may
encourage a State party that retains the death penalty to make use of that
penalty should, where possible, be avoided.

-------------------------------------------------------------------------------------------------------------------------------[FN3]
(See General Comment 6 [16] of 27 July 1982; also see Preamble to the Second
Optional Protocol to the Covenant Aiming at the Abolition of the Death
Penalty.)

8.3 In light of these
factors, we must examine the implications of holding the length of detention
on death row, per se, to be in violation of articles 7 and 10. The first,
and most serious, implication is that if a State party executes a condemned
prisoner after he has spent a certain period of time on death row, it will
not be in violation of its obligations under the Covenant, whereas if it
refrains from doing so, it will violate the Covenant. An interpretation of
the Covenant leading to this result cannot be consistent with the Covenant's
object and purpose. The above implication cannot be avoided by refraining
from determining a definite period of detention on death row, after which
there will be a presumption that detention on death row constitutes cruel
and inhuman punishment. Setting a cut-off date certainly exacerbates the
problem and gives the State party a clear deadline for executing a person if
it is to avoid violating its obligations under the Covenant. However, this
implication is not a function of fixing the maximum permissible period of
detention on death row, but of making the time factor, per se, the
determining one. If the maximum acceptable period is left open, States
parties which seek to avoid overstepping the deadline will be tempted to
look to the decisions of the Committee in previous cases so as to determine
what length of detention on death row the Committee has found permissible in
the past.

8.4 The second implication
of making the time factor per se the determining one, i.e. the factor that
turns detention on death row into a violation of the Covenant, is that it
conveys a message to States parties retaining the death penalty that they
should carry out a capital sentence as expeditiously as possible after it
was imposed. This is not a message the Committee would wish to convey to
States parties. Life on death row, harsh as it may be, is preferable to
death. Furthermore, experience shows that delays in carrying out the death
penalty can be the necessary consequence of several factors, many of which
may be attributable to the State party. Sometimes a moratorium is placed on
executions while the whole question of the death penalty is under review. At
other times the executive branch of government delays executions even though
it is not feasible politically to abolish the death penalty. The Committee
would wish to avoid adopting a line of jurisprudence which weakens the
influence of factors that may very well lessen the number of prisoners
actually executed. It should be stressed that by adopting the approach that
prolonged detention on death row cannot, per se, be regarded as cruel and
inhuman treatment or punishment under the Covenant, the Committee does not
wish to convey the impression that keeping condemned prisoners on death row
for many years is an acceptable way of treating them. It is not. However,
the cruelty of the death row phenomenon is first and foremost a function of
the permissibility of capital punishment under the Covenant. This situation
has unfortunate consequences.

8.5 Finally, to hold that
prolonged detention on death row does not, per se, constitute a violation of
articles 7 and 10, does not imply that other circumstances connected with
detention on death row may not turn that detention into cruel, inhuman and
degrading treatment or punishment. The jurisprudence of the Committee has
been that where compelling circumstances of the detention are substantiated,
that detention may constitute a violation of the Covenant. This
jurisprudence should be maintained in future cases.

8.6 In the present case,
neither the author nor his counsel have pointed to any compelling
circumstances, over and above the length of the detention on death row, that
would turn Mr. Johnson's detention into a violation of articles 7 and 10.
The Committee therefore concludes that there has been no violation of these
provisions.

8.7 Regarding the claim
under articles 7 and 14, paragraph 3 (g) - i.e. that the author was beaten
during police interrogation with a view to extracting a confession of guilt
- the Committee reiterates that the wording of article 14, paragraph 3 (g),
namely that no one shall "be compelled to testify against himself or to
confess guilt", must be understood in terms of the absence of any direct or
indirect physical or psychological pressure from the investigating
authorities on the accused, with a view to obtaining a confession of guilt.
E.g. Views on communication No. 248/1987 (G. Campbell v. Jamaica), adopted
30 March 1992, paragraph 6.7. Although the author's claim has not been
refuted by the State party, which promised to investigate the allegation but
failed to forward its findings to the Committee, the Committee observes that
the author's contention was challenged by the prosecution during the trial
and his confession statement admitted by the judge. The Committee recalls
that it must consider allegations of violations of the Covenant in the light
of all the written information made available to it by the parties (art. 5,
para. 1, of the Optional Protocol); in the instant case, this material
includes the trial transcript. The latter reveals that the author's
allegation was thoroughly examined by the court in a voir dire, 28 pages of
the trial transcript being devoted to this issue, and that his statement was
subsequently admitted by the judge after careful weighing of the evidence;
similarly, the jury concluded to the voluntariness of the statement, thereby
endorsing the judge's ruling that the author had not been ill-treated. There
is no element in the file which allows the Committee to question the
decision of the judge and the jury. It must further be noted that on appeal,
author's counsel accepted the voluntariness of Mr. Johnson's statement and
used it to secure a reduction of the charge against his client from murder
to manslaughter. On the basis of the above, the Committee concludes that
there has been no violation of articles 7 and 14, paragraph 3 (g).

8.8 The author has alleged
a violation of article 14, paragraphs 3 (c) and 5, because of an
unreasonably long delay of 51 months between his conviction and the
dismissal of his appeal. The State party has promised to investigate the
reasons for this delay but failed to forward to the Committee its findings.
In particular, it has not shown that the delay was attributable to the
author or to his legal representative. Rather, author's counsel has provided
information which indicates that the author sought actively to pursue his
appeal, and that responsibility for the delay in hearing the appeal must be
attributed to the State party. In the Committee's opinion, a delay of four
years and three months in hearing an appeal in a capital case is, barring
exceptional circumstances, unreasonably long and incompatible with article
14, paragraph 3 (c), of the Covenant. No exceptional circumstances which
would justify the delay are discernible in the present case. Accordingly,
there has been a violation of article 14, paragraphs 3 (c) and 5, inasmuch
as the delay in making the trial transcript available to the author
prevented him from having his appeal determined expeditiously.

8.9 The Committee
reiterates that the imposition of a sentence of death upon conclusion of a
trial in which the provisions of the Covenant have not been respected, and
which could no longer be remedied by appeal, constitutes a violation of
article 6 of the Covenant. As the Committee noted in its General Comment 6
[16], the provision that a sentence of death may be imposed only in
accordance with the law and not contrary to the provisions of the Covenant
implies that "the procedural guarantees therein prescribed must be observed
...". Since the final sentence of death in the instant case was passed
without having met the requirements for a fair trial set out in article 14,
it must be concluded that the right protected by article 6 of the Covenant
has been violated.

9. The Human Rights
Committee, acting under article 5, paragraph 4, of the Optional Protocol to
the International Covenant on Civil and Political Rights, is of the view
that the facts before it disclose violations of article 14, paragraphs 3 (c)
and 5, and consequently of article 6, of the Covenant.

10. Pursuant to article 2,
paragraph 3 (a), of the Covenant, the author is entitled to an effective
remedy. Aware of the commutation of the author's death sentence on 16 March
1995, the Committee considers that a further measure of clemency would be
appropriate. The State party is under an obligation to ensure that similar
violations do not occur in the future.

11. Bearing in mind that,
by becoming a State party to the Optional Protocol, the State party has
recognized the competence of the Committee to determine whether there has
been a violation of the Covenant or not and that, pursuant to article 2 of
the Covenant, the State party has undertaken to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized
in the Covenant and to provide an effective and enforceable remedy in case a
violation has been established, the Committee wishes to receive from the
State party, within 90 days, information about the measures taken to give
effect to the Committee's Views.

Made public by decision of the
Human Rights Committee.

Three individual opinions signed
by six members of the Committee are appended to the present document.

APPENDIX

A. INDIVIDUAL OPINION BY
COMMITTEE MEMBER CHRISTINE CHANET

The development of the
Committee's jurisprudence by a majority of its members in connection with
the present communication prompts me not only to

maintain the position I
expressed in the Barrett and Sutcliffe case (Nos. 270 and 271/1988) through
my individual opinion but also to explain it in greater detail.

The Views adopted in the Errol
Johnson case (No. 588/1994) have led the Committee, which wishes to remain
consistent, to conclude that death row does not in itself constitute a
violation of article 7; in other words, it does not constitute cruel,
inhuman or degrading treatment - irrespective of the length of time spent
awaiting execution of the sentence, which may be 15 to 20 years or more.

There is nothing in the grounds
for the decision that would enable the Commission, short of a complete
reversal of its jurisprudence, to reach a different conclusion concerning an
indefinite wait or a wait of several years.

The factors adduced in support
of this position are as follows:

- The Covenant does not prohibit
the death penalty;

- If the Covenant does not
prohibit the death penalty, execution of this penalty cannot be prohibited;

- Before the execution can be
carried out, some time must be allowed to elapse, in the interests of the
convicted prisoner, who must have the opportunity to exhaust the relevant
remedies;

- For the Committee to set a
limit on this length of time would be to run the risk of provoking hasty
execution. The Committee even goes so far as to state that life on death row
is preferable to death.

However, the Committee,
conscious of the risks of maximalist application of such a view by States,
recognizes that keeping a person under death sentence on death row for a
number of years is not a good way of treating him.

The position is very debatable
for the following reasons:

- It is true that the Covenant
does not prohibit the death penalty;

- It logically follows from this
that execution of the penalty is also not forbidden and that the existence
of a death row, i.e. a certain period of time prior to execution, is in this
sense inevitable.

On the other hand, one cannot
rule out the conclusion that no time-lag can constitute cruel, inhuman or
degrading treatment by postulating that awaiting death is preferable to
death itself and that any sign to the contrary emanating from the Committee
would encourage the State to proceed with a hasty execution.

This reasoning may be considered
excessively subjective on two counts. In an analysis of human behaviour, it
is not exceptional to find that a person suffering from an incurable
illness, for example, prefers to take his own life rather than await the
inevitably fatal outcome, thereby opting for immediate death rather than the
psychological torture of a death foretold.

As to the "message" which the
Committee refuses to send to States lest the setting of a time-limit provoke
hasty execution, this again is a subjective analysis in that the Committee
is anticipating a supposed reaction by the State.

In my view, we should revert to
basic considerations of humanity and bring the discussion back to the
strictly legal level of the Covenant itself.

There is no point in trying to
find what is preferable in this area. Unquestionably, the fact of knowing
that one is to undergo the death penalty constitutes psychological torture.
But is that a violation of article 7 of the Covenant? Is death row in itself
cruel, inhuman or degrading treatment?

Some authors maintain that it
is. However, this argument comes up against the fact that the death penalty
is not prohibited in the Covenant, even though the Covenant's silence on
this point can give rise to interpretations which are excluded under the
European Convention on Human Rights, article 2, paragraph 1, of which
explicitly provides for capital punishment as an admissible derogation from
the right to life. The very existence of the Optional Protocol contradicts
this argument.

I therefore believe that being
on death row cannot in itself be considered as cruel, inhuman or degrading
treatment. However, it must be assumed that the psychological torture
inherent in this type of waiting must, if it is not to constitute a
violation of article 7 of the Covenant, be reduced by the State to the
minimum length of time necessary for the exercise of remedies.

Consequently, the State must:

- Institute remedies;

- Prescribe reasonable
time-limits for exercising and examining them;

- Execution can only be
concomitant with exhaustion of the last remedy; thus, in the system
obtaining in France before the Act of 9 October 1981 abolishing the death
penalty, the announcement of the execution was conveyed to the convicted
prisoner at the actual time of execution, when he was told "Your application
for pardon has been refused".

This is not some kind of
formula, since I believe there is no good way in which a State can
deliberately end the life of a human being, coldly, and when that human
being is aware of the fact. However, since the Covenant does not prohibit
capital punishment, its imposition cannot be prohibited, but it is

incumbent on the Human Rights
Committee to ensure that the provisions of the Covenant as a whole are not
violated on the occasion of the execution of the sentence.

Inevitably, each case must be
judged on its merits: the physical and psychological treatment of the
prisoner, his age and his health must be taken into consideration in order
to evaluate the State's behaviour in respect of articles 7 and 10 of the
Covenant. Similarly, the judicial procedure and the remedies available must
meet the requirements of article 14 of the Covenant. Lastly, in the
particular case, the State's legislation and behaviour and the conduct of
the prisoner are elements providing a basis for determining whether or not
the time-lag between sentencing and execution is of a reasonable character.

These are the limits to the
subjectivity available to the Committee when exercising its control
functions under the Covenant and the Optional Protocol, excluding factors
such as what is preferable from the supposed standpoint of the prisoner,
death or awaiting death, or fear of a possible misinterpretation by the
State of the message contained in the Committee's decisions.

The development in the
jurisprudence of the Committee with regard to the present communication
obliges us to express views dissenting from those of the Committee majority.
In several cases, the Committee decided that prolonged detention on death
row does not per se constitute a violation of article 7 of the Covenant, and
we could accept these decisions in the light of the specific circumstances
of each communication under consideration.

The Views adopted by the
Committee in the present case reveal, however, a lack of flexibility that
would not allow to examine any more the circumstances of each case, so as to
determine whether, in a given case, prolonged detention on death row
constitutes cruel, inhuman or degrading treatment within the meaning of
article 7 of the Covenant. The need of a case-by-case appreciation leads us
to dissociate ourselves from the position of the majority, and to associate
ourselves to the opinion of other members of the Committee who were not able
to accept the majority views, in particular to the individual opinion
formulated by Ms. Chanet.

(Signed)
(Signed) (Signed) (Signed)

P. Bhagwati M. Bruni
Celli J. Prado Vallejo F. Pocar

C. INDIVIDUAL OPINION BY
COMMITTEE MEMBER

FRANCISCO JOSÉ AGUILAR URBINA

The majority opinion on the
communication submitted by Errol Johnson against Jamaica (No. 588/1994)
obliges me to express my individual opinion. The Human Rights Committee has
established in its jurisprudence that the death row phenomenon does not, per
se, constitute a violation of article 7 of the International Covenant on
Civil and Political Rights. The Committee has repeatedly maintained that the
mere fact of being sentenced to death does not constitute cruel, inhuman or
degrading treatment or punishment. On some occasions, I have agreed with
this position, subject to the proviso that, as I also wish to make clear in
this individual opinion, I believe that capital punishment in itself
constitutes inhuman, cruel and degrading punishment.

In my opinion, the Committee is
wrong to seek inflexibly to maintain its jurisprudence without clarifying,
analysing and appraising the facts before it on a case-by-case basis. In the
communication concerned (Johnson v. Jamaica), the Human Rights Committee's
wish to be consistent with its previous jurisprudence has led it to rule
that the length of detention on death row is not in any case contrary to
article 7 of the Covenant.

The majority opinion seems to be
based on the supposition that only a total reversal of the Committee's
jurisprudence would allow it to decide that an excessively long stay on
death row could entail a violation of that provision. In arriving at that
conclusion, the majority made a number of assumptions:

1. That the
International Covenant on Civil and Political Rights does not prohibit the
death penalty, though it subjects its use to severe restrictions;

2. That detention on
"death row" is a necessary consequence of imposing the death penalty and
that, no matter how cruel, degrading and inhuman it may appear to be, it
cannot, of itself, be regarded as a violation of articles 7 and 10 of the
Covenant;

3. That, while the
Covenant does not prohibit the death penalty, it refers to its abolition in
terms which strongly suggest that abolition is desirable;

4. That the provisions
of the Covenant must be interpreted in the light of the objects and purposes
of that instrument and that, as one of these objects and purposes is to
promote reduction in the use of the death penalty, an interpretation that
may encourage a State to make use of that penalty should be avoided.

On the basis of these
assumptions, a majority of the members of the Human Rights Committee have
arrived at certain conclusions which entail, in their opinion, a finding
that there has been no violation of articles 7 and 10 of the Covenant on the
part of the State that is the subject of the communication:

1. That a State party
which executes a condemned person after he has spent a certain period of
time awaiting execution would not be in violation of the provisions of the
Covenant, whereas one which does not execute the prisoner would violate
those provisions. This implies that the problem of length of detention on
death row can be dealt with only by setting a cut-off date after which the
Covenant would have been violated;

2. That making the time
factor the one that determines a violation of the Covenant conveys a message
to States parties that they should carry out a death sentence as
expeditiously as possible after it is imposed;

3. That to hold that
prolonged detention on death row does not, per se, constitute a violation of
articles 7 and 10 of the Covenant does not imply that other circumstances
connected withsuch detention may not turn it into cruel, inhuman or
degrading punishment.

While subscribing to several of
the arguments put forward by the majority, I agree with only the last of
their conclusions. I consider the majority opinion debatable:

1. I agree that, while
the International Covenant on Civil and Political Rights does not prohibit
the death penalty, it does subject its use to severe restrictions;

2. I also agree that,
since capital punishment is not prohibited, States parties which still
include it among their penalties are not prevented from applying it - within
the strict limits set by the Covenant - and that the existence of "death
row" (in other words, a certain period of time between the handing down of a
death sentence and the execution of the condemned person) is, therefore,
inevitable;

3. I also consider that
there is no doubt that the Covenant suggests that abolition of the death
penalty is desirable;

4. In any event, it
cannot be denied that the provisions of the Covenant should be interpreted
in the light of the object and purpose of this treaty. However, while I
agree that one of the objects and purposes of the Covenant is to reduce the
use of the death penalty, I believe that that is precisely as a consequence
of a greater purpose, which is to limit the grounds for death sentences and,
ultimately, to abolish the death penalty.

In the case of the present
communication, and of the many which have been submitted against Jamaica
during the last decade, it is regrettable that the State party, by refusing
for the past 10 years to comply with its obligation to report to the Human
Rights Committee under article 40 of the Covenant, has denied the Committee
the opportunity to pronounce on the application of the death penalty in
Jamaica as part of the procedure for consideration of reports. Jamaica was
to have submitted its second periodic report on 1 August 1986 and 3 August
1991.

-----

This means that, for 15 years,
the Human Rights Committee has been prevented from considering whether the
death penalty is imposed in Jamaica in accordance with the strict limits
imposed by the Covenant.

I do not, however, agree with
the conclusion, at which the majority have arrived, that it is, therefore,
preferable for a condemned person to endure being on death row, regardless
in any case of the length of time spent there. The arguments of the majority
are, in any case, subjective and do not represent an objective analysis of
treaty norms.

In the first place, it is stated
as a basic assumption that awaiting execution is preferable to execution
itself. This argument cannot be valid since, as I have said, communications
such as the one under consideration can be viewed only in the light of the
attendant circumstances; in other words, they can be decided only on a
case-by-case basis.

Furthermore, a claim such as
that of the majority is completely subjective. It represents an analysis of
human behaviour which expresses the feelings of the members of the
Committee, but which cannot be applied across the board. For example, it
would not be surprising if a person condemned to death who was suffering
from a terminal or degenerative illness preferred to be executed rather than
remain on death row. It is not surprising that some people commit murder for
the purpose of having the death penalty imposed on them; for them, every day
spent on death row constitutes real torture.

5. I also disagree with
the position that, in this case, to rule that the excessive length of time
which Errol Johnson spent on death row constitutes a violation of the
Covenant would be to convey a "message" to States parties that they should
execute those condemned to death expeditiously. This, again, is a subjective
opinion of the majority and represents the feelings of the Committee members
rather than a legal analysis. Moreover, it presents the additional problem
of defining a priori how States parties will behave.

In that regard, I also regret
that the State party has not allowed the Committee to weigh its position on
the imposition of the death penalty. Indeed, this is one of the facts which
leads me to dissent from the majority opinion:

(a) I do not believe that
it is possible to project the future behaviour of a State which has
repeatedly refused to comply with its obligations under article 40
(submission of periodic reports), since the Committee has been unable to
question the Government authorities on that specific point;

(b) The ultimate result
has been to benefit a State which, for at least a decade, has refused to
comply with its treaty obligations, giving it the benefit of the doubt with
regard to behaviour which should have been clarified under the procedure set
forth in article 40.

The Committee is not competent
to decide what would be preferable in cases like that of the communication
under consideration. Neither should it transform this communication into a
mere hypothetical case in order to induce unspecified State officials to
behave in a particular manner. Any opinion should be based on the concrete
circumstances of Mr. Johnson's imprisonment.

Furthermore, any decision
regarding this communication should be taken on a strictly legal basis.
There is no doubt that the certainty of death constitutes torture for the
majority of people; the majority of those sentenced to death are in a
similar position. Independently of the fact that it is my philosophical
conviction that the death penalty, and therefore its corollaries (being
sentenced to death and awaiting execution) constitute inhuman, cruel and
degrading punishment, I must ask myself whether those facts - and, in a case
such as this one, the phenomenon of death row - are in violation of the
International Covenant on Civil and Political Rights.

Any opinion comes up against the
fact that the Covenant does not prohibit the death penalty. It cannot,
therefore, be maintained that the death row phenomenon, per se, constitutes
cruel, inhuman or degrading treatment. Nor can implementation of the death
penalty be prohibited.

However, all States parties must
minimize the psychological torture involved in awaiting execution. This
means that the State must guarantee that the suffering to be endured by
those awaiting execution will be reduced to the necessary minimum.

In that regard, the following
guarantees are required:

1. The legal proceedings
establishing the guilt of the person condemned to death must meet all the
requirements laid down by article 14 of the Covenant;

2. The accused must have
effective access to all necessary remedies until his guilt has been
demonstrated beyond a doubt;

3. Reasonable
time-limits must be set for the exercise of these remedies and for their
review by independent courts;

4. Execution cannot take
place until the condemned person's last remedy has been exhausted and until
the death sentence has acquired final binding effect;

5. While awaiting
execution, the condemned person must at all times be duly accorded humane
treatment; inter alia, he must not be subjected unnecessarily to the torture
entailed by the fact of awaiting death.

The Human Rights Committee is
responsible for ensuring that the provisions of the International Covenant
on Civil and Political Rights are not violated as a consequence of the
execution of a sentence. I therefore emphasize that the Committee must
examine the circumstances on a case-by-case basis. The Committee must
establish the physical and psychological conditions to which the condemned
person has been subjected in order to determine whether the behaviour of the
Government authorities is in accordance with the provisions of articles 7
and 10 of the Covenant.

The Committee must therefore
establish whether the laws and actions of the State, and the behaviour and
conditions of the condemned person, make it possible to determine whether
the time elapsed between sentencing and execution is reasonable and, on that
basis, that it does not constitute a violation of the Covenant. These are
the limits of the Human Rights

Committee's competence to
determine whether there has been compliance with, or violation of, the
provisions of the International Covenant on Civil and Political Rights.